Friday, November 16, 2012

Verizon and Speech Control

We did not hear as much in the 2012 election cycle about the national communications infrastructure as we did in 2008. In the interim, the FCC adopted some some Net Neutrality rules -- providing that service providers such as Verizon can't pick and choose what to deliver to your house, or indeed whether it wants you as a customer. Verizon wasn't happy, but the issue didn't make much campaign news.

Over the summer Verizon appealed the new rules, and the decision now rests with a federal court. Verizon has taken a strong stand, on basic Constitutional grounds. "Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," states their appeal. So, Verizon and their fellow appellants argue, the FCC rule "violates the First Amendment by stripping them of control over the transmission of speech on their networks."

If the court upholds that interpretation of the Internet, the consequences would be staggering. As an Amicus brief filed yesterday by Susan Crawford and other experts explains, 

the law, and Verizon itself, have long recognized a sharp distinction between providing a facility whereby someone else’s speech is transmitted and expression itself. The Communications Decency Act, which was enacted as part of the same 1996 statute on which Verizon relies to attack the Open Internet Rules here, provides that “No provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Readers of Blown to Bits will remember this as the "Publisher or Distributor" question (p. 234). Verizon, having enjoyed its status as a mere distributor to avoid liability for the speech it transmits, now wishes to be treated as a publisher so it can at its whim censor that speech, and pick and choose to whom it is delivered. As Verizon itself said in a previous court case quoted in the Amici brief,
The minute that anyone, whether from the government or the private sector, starts to control how people access and use the Internet would be the beginning of the end of the Net as we know it....When a person accesses the Internet, he or she should be able to connect with any other person that he or she wants to[.] 
It is scary to think how this might play out -- and not at all obvious that a deregulatory-minded Supreme Court, if the case got that far, might not agree with Verizon that it should be left alone as a private party to block, alter, slow down, or edit the bits that flow through its pipes without government interference. And that would be the end of the Internet as "the most participatory form of mass speech ever invented," in the words of the opinion that struck down part of the Communications Decency Act.

Another reminder, if anyone needed one, that elections matter because the judiciary is the last protector of civil rights, including free speech rights, when the privately-bought-and-paid-for Congress can't be counted on to do its job.

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